Framing Discrimination Law: Wal-Mart v. Dukes and Title VII

JURIST Guest Columnist Sandra Sperino of the University of Cincinnati College of Law says that the frameworks courts currently use to examine employment discrimination cases are too narrow in scope to deal with the type of discrimination alleged in Wal-Mart Stores, Inc v. Dukes...

The case of Wal-Mart Stores, Inc. v. Dukes is widely regarded as one of the most important in the Supreme Court's last term. In that case, the Supreme Court reversed a decision of the US Court of Appeals for the Ninth Circuit certifying what would have been the largest class action suit in history, alleging that Wal-Mart paid women less than men and promoted them less often.

In Dukes, the Court fails to grapple with an important dilemma at the heart of discrimination law: how to frame discrimination claims. Increasingly, the legal lens through which courts view a certain set of facts determines whether those facts establish discrimination. Despite the number of avowed textualists on the Supreme Court, the lens through which that Court views discrimination is often centered on court-created frameworks, rather than statutory text.

Title VII of the Civil Rights Act of 1964, the cornerstone civil rights legislation, has broad operative language. Under its terms, an employer cannot "otherwise ... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment" because of such individual's protected trait, such as sex. The statute further prohibits employers from limiting or classifying employees in any way which would "deprive or tend to deprive" any individual of employment opportunities or "otherwise adversely affect his status as an employee" because of a protected trait.

The courts have interpreted this language by dividing and subdividing it into several types of discrimination. For example, courts often describe cases as raising intentional discrimination claims or disparate impact claims. Intentional discrimination claims, also referred to as disparate treatment claims, are further subdivided into individual claims and pattern-or-practice claims. Courts require plaintiffs proceeding on a pattern-or-practice claim to demonstrate that discrimination was the standard operating procedure of the company with respect to a certain group of employees.

Under Title VII, disparate impact describes the idea that a facially neutral policy has a disproportionate impact based on a protected trait. For example, a policy that requires all employees to be taller than six feet would disproportionately affect women. If such a policy was not justified by adequate reasons, it could lead to disparate impact liability under Title VII.

In Dukes, the majority opinion characterized the underlying claims by reference to court-created doctrines, with scant reference to Title VII itself. The majority opinion viewed the plaintiffs as alleging that Wal-Mart's subjective wage and promotion criteria created a disparate impact based on sex. It also characterized the case as alleging that Wal-Mart engaged in a pattern or practice of discrimination by being aware of the disparate impact and doing nothing about it. Later in the majority opinion, the Court noted that in order to proceed in the class action format the plaintiffs need to allege the same type of discrimination across the class.

The majority opinion thus required plaintiffs to funnel their discrimination claims into silos of discrimination: a disparate impact claim and a pattern-or-practice claim. Using the majority's rationale, the plaintiffs were not able to bring their suit as a class action because the central idea of a pattern-or-practice claim requires a unified policy and the notion of subjective decision making is contrary to this idea. One of the most striking features of Dukes is how little attention the Court pays to the actual text of Title VII.

What the majority opinion failed to consider is that Title VII's statutory language does not mandate that plaintiffs' claims fit within these separate frameworks. The pattern-or-practice construct is a court-created idea. It is a judicial gloss placed on Title VII and one that is not mandated by the statute's language, at least with respect to litigation brought by private plaintiffs.

The disparate impact framework also stems from court-created doctrine. In 1971, the Court recognized disparate impact claims in Griggs v. Duke Power Co. and developed a framework for disparate impact claims in subsequent cases. Even though Congress later codified the idea of disparate impact in a separate statutory provision, this provision does not require that all cases based on statistical disparities proceed through the disparate impact framework. Nor does the statute provide that a plaintiff may not establish discrimination by showing that an employer is aware of skewed employment data and refuses to change its practices. Plaintiffs can establish discrimination by using the disparate impact or pattern-or-practice frameworks, and in this sense the frameworks might be helpful to courts. However, these frameworks are not the only way to establish a viable discrimination claim. Title VII's language provides a broader potential legal landscape than what is currently reduced to legal frameworks.

The facts of Dukes look different when viewed through the statutory language than those same facts look when funneled through court-created frameworks. In the case, the plaintiffs alleged that pay and promotion decisions were left to a nearly all male managerial workforce and that when these decisions were considered in the aggregate they heavily favored men. The plaintiffs described a "tap on the shoulder" promotion process in which managers often did not publicly post available job vacancies. The plaintiffs alleged that managers often assumed women would be unwilling to relocate to obtain promotions. Plaintiffs' data showed that women filled 70 percent of the hourly jobs at Wal-Mart, but made up only a third of management employees. According to the plaintiff's Third Amended Complaint, [PDF] these statistics were vastly different than the management statistics for Wal-Mart's competitors.

The pay procedures gave managers a band within which to pay hourly workers, but allowed wide discretion about how to pay individual employees within the established spectrum. The plaintiffs presented data showing women are paid less than men in every region of the country. This statistical evidence was supported by anecdotal evidence from numerous women. In their complaint, plaintiffs alleged that women were often placed into job assignments that were less likely to receive higher pay.

For private litigants, the statutory language does not ask whether these facts can be funneled into a pattern-or-practice claim. Nor does the statutory language ask whether Wal-Mart acted intentionally with respect to women. Rather, it asks whether women were otherwise discriminated against with respect to their compensation, terms, conditions or privileges of employment because of their sex or whether the employer limited them in ways that deprived them of employment opportunities or otherwise adversely affected them because of a protected trait.

The majority's need to funnel discrimination cases into court-created frameworks is especially troubling because these frameworks fail to capture the full range of potential discrimination. Although the courts have never considered whether the recognized tests represent the complete range of potential liability under the discrimination statutes, the courts often act as if the available tests represent the only options available to plaintiffs. Given that the courts created many of these frameworks in the 1970s and 1980s, many of them fail to incorporate newer ideas of structural discrimination and do not reflect more modern understandings of how cognitive bias operates. Further, they fail to describe how corporate intent might interact with individual intent to create liability for the employer.

The plaintiffs in Dukes do not allege a traditional discrimination claim, and the facts of the case do not fit neatly into any of the traditional frameworks. It is an interesting question whether these facts state a claim under Title VII's statutory language. To answer this question, however, courts and litigants must stop pretending that court-created frameworks represent the only way of proceeding under the discrimination statutes.

Admittedly, this question is even more difficult to answer at the class action certification stage, where it is uncertain how much the court is supposed to be considering the underlying merits of the action. The largest class action in history likely does not provide a good backdrop for also considering difficult questions about how court-created frameworks interact with Title VII's statutory language.

However, Dukes does provide a concrete example of how the use of frameworks may alter the outcome of litigation. Whether the facts in Dukes are deemed to be legally cognizable discrimination heavily depends upon the legal framework through which the facts are viewed. It is time to consider whether courts are using a lens that reflects the full potential of Title VII's statutory language.

Sandra Sperino is an Associate Professor at the University of Cincinnati College of Law. Prior to her academic career, she served as a clerk for Judge Donald Stohr of the US District Court for the Eastern District of Missouri. Sperino's scholarship focuses on employment discrimination, and she currently serves as the Chair-Elect for the Association of American Law Schools Section on Employment Discrimination Law and is a contributing editor to several employment law books published by the American Bar Association.

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